Joseph Blocher (Duke University School of Law) has posted Safe Storage and Self Defense from Heller to Bruen (North Carolina Law Review, forthcoming) (26 pages) on SSRN. Here is the abstract:
This Article, prepared for a symposium honoring Walter Dellinger, analyzes and criticizes an often-overlooked portion of District of Columbia v. Heller: The Court’s invalidation of the District’s requirement that firearms be kept “unloaded and dissembled or bound by a trigger lock or similar device.” The Heller majority did this not by asking whether such a requirement would make it too hard to use a gun in self-defense, but rather by insisting that the safe storage requirement—unlike most generally applicable rules and also unlike Founding-era gun laws—did not contain a self-defense exception.
Part I of the Article unpacks the Justices’ treatment of the safe storage requirement in Heller, first at oral argument and then in the opinions. Part II explains why the refusal to recognize a self-defense exception was so significant and what that refusal illustrates about the Court’s recent approaches to constitutional doctrine more broadly. The Court dodged an important and genuinely hard question—whether safe storage requirements impermissibly burden armed self-defense—by manufacturing an easier one: Whether a city can ban “functional firearms.” This move exemplifies both the Court’s failure to grapple with the relationship between the Second Amendment and self-defense, and—broader still—its tendency to defer to what it sees as the wisdom of the past (when safe storage laws all had implied self-defense exceptions) but not of today. Part III shows how Bruen has transformed that tendency into a constitutional rule, effectively codifying the doctrinal trend that Heller’s worst holding exemplified.
Posted at 6:06 AM